R. v. Harflett was released last week by the Court of Appeal. It provides a clear road-map on how police officers can exceed their statutory and common law powers. It also gives a robust justification for the exclusion of evidence under the Charter.
The facts in the case are benignly every day. A driver was pulled over on the side of the road with a suspended driver’s license. Since he could no longer drive the car, the officer called for a tow to remove it from the highway.
What the officer did next had no legal justification. He searched the driver’s car under the pretext of performing an “inventory”. As the court noted, this was plainly a search. Words like “inventory” do not change the reality of what happened, which resulted in the seizure of a “large quantity” of drugs.
But this was an unlawful search. The car was not being impounded and there was no reason to do so. The driver still owned it; he just needed to get it off the highway. He was not being obstructive and was of a sound mind. He did not threaten to get back inside and drive away. He was cooperative.
Given these facts, the officer had no need to invoke his ancillary powers, impound the car, or search it. The car was going with the driver to his hotel.
Follow Your Legal Authority
Harflett illustrates a key principle that amplifies the invocation of a Charter breach in a criminal case. Follow your legal authority.
Where legal authority ends, a potential Charter breach begins. As was done in Harflett, this calls for a “step-by-step” analysis of the police-citizen encounter, whether it is a road-side stop or a sidewalk investigative detention.
In motor vehicle cases, the primary legal authority starts with provincial highway traffic acts and their common law interpretation. In Canada, it is legal to randomly stop a motor vehicle to make a threshold check for a driver sobriety and ensure vehicle registration and insurance. Section 9 of the Charter protects against arbitrary detentions, but courts have ruled that it can tolerate a brief detention to serve the public interest in detecting and preventing impaired driving.
In other cases, there may be regulatory laws that kick in. Truckers, for example, need to comply with an assortment obligations and their trucks are places of business.
Again – follow the legal authority. Where that ends, so do lawful police powers.
A typical example is a driver is pulled over. Is he or she sober? Check. Is their license valid? Check. Insurance? Check.
The office should be on their way unless there is evidence to justify a criminal investigation. If not, the clock starts to tick on a Charter violation the second lawful authority expires.
Exclusionary principles: Discoverability and Dissociation
Harflett also serves as a useful guide on two of the main themes that determine whether evidence will be excluded after a Charter breach: discoverability and the need for the court to dissociate itself from the unlawful conduct of a police officer.
These twin themes are present in the classic, three-part test for exclusion under R. v. Grant: the seriousness of the breach, the impact on the accused, and society’s interest in adjudication on the merits.
The first factor calls into question the perspective of the police. Harflett sweeps aside the old debate over the “good faith” of the officer and focuses instead on how flagrant their actions were as measured against the current understanding of the law:
Constable Sinclair’s invariable practice of searching every car fits the description of an impermissible “fishing expedition conducted at a random highway stop". As an instructor of other police officers, he ought to be fully conversant with his legal authority, but the evidence shows either that he was not or that he was prepared to search regardless.
The Charter does not condone a fishing expeditions in criminal conduct - outside the strictly regulated confines of a impaired driving investigation. The evidence in this case was not discoverable. There was a need for the court to distance itself from that behaviour.
So too from the perspective of the accused. It is true that the contents of one’s car may represent a lesser form of privacy than say one's house or pockets, but it is still a zone of privacy. This is all the more so when a police officer flagrantly violates limits on their legal authority, as the court makes clear:
…the impact of even a minimally intrusive search “must be weighed against the absence of any reasonable basis for justification”. There was no justification for Constable Sinclair’s inventory search. I am satisfied the second Grant factor also militates in favour of the exclusion of the evidence in this case.
What rises to the surface in both of these inquiries is that the complete and utter absence of authority to conduct a search will makes the exclusion of evidence highly inevitable. In this case, the evidence would never have been discovered had the police officer paid attention to clear limits on his authority. If he had done so, the case never would have made it to court. The exclusion of evidence in cases like that acts almost as a retrospective cleansing of the Charter breach.
Cases where evidence has not been excluded – and R. v. Nolet was repeatedly referenced in Harlfett – equally illustrate this principle. In those cases, there is little point in excluding evidence that would have inevitably been found, absent other factors, such as egregious police misconduct.
Courts do not want to be associated with a blatant disregard for our laws, no matter how guilty an accused may be. The long-term damage to the justice system is too great. The precise words of the power to exclude in section 24(2) of the Charter are clear: it exists to prevent the administration of justice from being brought into "disrepute".
And this is what makes R. v. Harflett such a great case for both the Crown and the Defence – it helps focus on what is truly at stake in Charter cases.